INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 10, 1999

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[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): I'd like to call the meeting to order pursuant to an order of reference of the House dated Tuesday, November 3, 1998, consideration of Bill C-54, an act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.

Today we're very pleased to welcome four different groups of witnesses. With us we have representatives from the Canadian Cable Television Association, Enlogix Inc., the Canadian Newspaper Association and the Writers' Union of Canada. Each of the four different groups has an opening statement—hopefully no longer than five minutes each—and then we'll move to questions.

I'm going to begin with the Canadian Cable Television Association. I believe Mr. Boyd will be giving their statement.

Mr. Harris D. Boyd (Vice-President, Industry Affairs, Canadian Cable Television Association): Good afternoon, everyone. Thank you very much for inviting us to appear this afternoon.

I'm vice-president of industry affairs for the Canadian Cable Television Association. Joining me today is Gerry Lavallée, president and CEO of the Cable Television Standards Foundation, an independent self-regulatory organization that administers a wide range of industry standards and receives and responds to customer concerns and complaints. Our association, the CCTA, represents about 86 cable television companies serving 7.5 million Canadian households in all regions of the country. These households include close to 20 million Canadians.

Our industry fully supports Bill C-54 and the underlying need for the protection of personal information. We feel that it represents a responsible and balanced approach to protecting the interests of consumers without placing an undue burden on business.

The CCTA was directly involved in the development of the CSA's model code for the protection of personal information and subsequently developed its own sectoral code for use by member cable companies. We're very pleased to see that the principles of the CSA code have been directly incorporated in the current legislation.

We've also been an active participant in the consultation process leading to the development of this legislation through the discussion paper developed by Industry Canada. The cable television industry is federally regulated and will be one of the first to fall under the new legislation. Cable companies, in fact, hold very little personal information on their customers. Information required to provide and of course bill for cable television services is usually limited to name, address, type of service and credit history.

The current cable television service standards, administered by the organization headed by my colleague, Mr. Lavallée, already require that customer information be kept confidential and provide for customer access to any information held by their cable company. Although our council has been in place for ten years, it has actually handled very few complaints from customers about privacy issues—only about 40 during that entire period. These, I'm pleased to say, have all been resolved subsequently by the companies concerned.

The council administers a comprehensive set of customer service standards on behalf of our industry. It has been very successful in familiarizing not only the cable companies but their customers with the process, and we hope that customers will continue to rely on that self-regulatory complaints resolution process as a first avenue of recourse.

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The new legislation and the expanded office of the Privacy Commissioner should be seen as providing further protection, particularly for industries where they do not already have some formal process in place. We do believe, in our case, that “if it isn't broken, don't fix it”. We very much see the Privacy Commissioner operating in a role complementary to our own processes and providing an avenue of recourse if the Cable Television Standards Council is unable to resolve an issue.

We would also hope that within the commissioner's powers conciliation and mediation would always take precedence. Our own experience with the process the council administers has been that virtually all complaints can be successfully resolved in this manner. As well, before any audit is undertaken by the commissioner, we would hope that the company involved would have a reasonable opportunity to set out the facts of the case and explain how it has complied with the act. Should the Privacy Commissioner not be satisfied, he would of course then be entirely justified in conducting an audit.

The exception for journalistic, artistic and literary purposes is an important consideration for our industry. Our member companies operate some 230 community channels across the country. It is essential that they be able to develop programming and provide information about the communities they serve without being restricted by requirements to obtain consent. Public comment, artistic expression and community-channel programming are already subject to cable television standards to achieve balance, fairness, equity and broad representation on issues of importance to the community.

The cable television industry also wants to ensure that it can continue to offer customers a broad range of new services. This flexible approach being proposed to consent and, through the amendment, the ability to use publicly available nominative information should allow the marketing of new services as they become available. We fully support this approach.

One of the industry's new services, as you may know, is that of providing customers with high-speed access to the Internet over their cable systems. Generally the role of cable companies in offering this service is that of providing hardware, managing the network and ensuring the security of that network. This service provides users with access to the entire world, obviously, via the Internet.

As such, we don't believe that cable companies should be held responsible for the content or the subsequent use of information sent and received over their networks, even if it concerns their customers or third parties. We are prepared, however, to advise our customers of the privacy risks inherent in using the Internet and particularly in providing personal information to other parties over it.

With respect to customer information and education in general, the cable industry is very supportive of the new mandate for public education provided to the Privacy Commissioner under clause 24 of the bill. The industry is fully prepared to do its part to ensure that customers are aware of the new legislation and their rights under it.

We plan to develop for our members a generic information piece that companies can distribute to their customers. Larger companies, of course, with more diverse business interests, will probably tailor it to reflect those interests. In addition to specifying the types of information cable companies hold about their customers, this information piece will also set out the principal uses of that information and the ways in which a customer can access it. We'll also clearly inform customers about how can have their names removed from marketing lists if they do not want to receive certain information.

At the same time, we plan to continue to encourage customers to take advantage of the Cable Television Standards Council complaints-handling process, which has worked so well over the years.

In all of these initiatives, we would like to work closely with the Office of the Privacy Commissioner to ensure that we're complying not only with the content of the new act but with its spirit as well.

In sum, we feel the drafters of this legislation have done a good job. A complaints-driven process supported by public education is definitely the best way to ensure that customers are protected and that businesses are not unduly burdened.

Thank you for allowing us to share our comments.

The Chair: Thank you very much, Mr. Boyd.

I'm now going to turn to Enlogix Inc. Mr. Smith will be doing the presentation.

Mr. Arnold D. Smith (Director, Strategic Development, Enlogix Inc.): We'd like to thank the committee for giving us the opportunity to be with you today. I'm the director of strategic development for Enlogix Inc., an affiliate of Westcoast Energy based in Vancouver. With me is Mr. Stephen Acker, of the law firm Johnston and Buchan, our outside counsel.

Members will have copies of a submission we filed to the committee in November of last year. Over the last several months, the committee has heard from a large number of witnesses and we've tried to follow these discussions from a distance as best we can. Without repeating at length the comments we made in our initial submission, we'd like to very briefly highlight a few points from it and add a few thoughts on some issues of concern raised over the last few weeks and months. I believe we may be the only utility-related organization to appear before you. Perhaps, therefore, we can add something of a unique perspective to your deliberations.

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Our perspective is definitely that of a business enterprise whose operations are interprovincial and will ultimately be national in scope. Enlogix manages consumer information on behalf of utilities, municipalities and energy service providers, hence our very great interest in this bill and its implications. We also recognize that it will apply to us immediately upon coming into force.

Enlogix was created by Westcoast Energy as part of its strategy to manage energy-based information and related technology. In our view, leadership in information management includes taking privacy concerns very seriously and making the protection of personal information an integral part of doing business. We believe this to be true for several reasons and think that Bill C-54 provides a clear framework within which we can achieve this.

Firstly, we believe that deregulation of the utility business is creating an information vacuum of sorts, that is, a large number of new players have quickly entered a market that was previously the exclusive domain of the regulated utility. These new entrants need access to all sorts of data and information traditionally gathered and managed by the utility. Not surprisingly, most utility information systems weren't designed with this type of demand in mind, nor are utilities particularly well positioned to provide information management services to other companies.

Enlogix is positioning its businesses as neutral custodians that will manage information—some of which fits the definition of personal information—on behalf of many players. To do this, it is absolutely essential that Enlogix be trusted by all of our clients and ultimately by their customers, Canada's energy consumers. We believe that Bill C-54 provides us a workable framework within which to earn that trust.

Second, utilities have historically gathered and managed personal information in the normal course of providing consumers with an essential service. There have typically been no formal rules governing any other uses to which personal information might be put, but deregulation is bringing with it a fierce battle for the customer relationship, and there are many new competitors providing services to consumers who are of course working from a basic expectation of trust built up over many years. This creates the very real possibility of misuse of personal information, or at least the perception of abuse, as every player tries to use customer information as a means to gain competitive advantage.

Using Bill C-54 as a map, Enlogix will be in a position to guide its utility and non-utility clients alike onto a path of respect for personal information. We recognize that we're only one player, but by managing information for several firms in the utility marketplace, we may be able to help others apply the principles of Bill C-54 in a uniform manner.

Lastly, utility deregulation is something that many individual consumers are only beginning to understand, let alone care about, as consumers will now be offered choices that may be hard to comprehend. In some cases, this may feel like an invasion of privacy. Once again, by using Bill C-54 as a blueprint, Enlogix may be able to move our clients and their customers along this learning curve more quickly and with more clarity as to how personal information can and cannot be used.

We agree with those who've testified that, on balance, Bill C-54 is a good bill and that its strengths—among them its flexibility and balance among competing interests—far outweigh its flaws. We very much hope it will be enacted, preferably with a few improvements. In this regard, we've reviewed the recently tabled amendments and support them. They appear to tighten up and clarify certain provisions while maintaining the overall balance of the bill.

As a business that's national in scope, we very much support the intent of the bill to create a more or less uniform privacy protection regime at both the federal and provincial levels. Given the national economic implications of electronic commerce—and in fact, the international economic implications of electronic commerce—and given that protection of privacy seems to be a prerequisite for consumer trust, which is, as I've already stated, particularly important to Enlogix, there should be, we hope, more than enough incentive for the provinces and the federal government to develop a manageable and cooperative legal regime. The bill is a salutary opening shot and we hope that it will produce productive responses from those provinces currently without similar legislation.

We agree with the Privacy Commissioner of Canada that ombudsman-like powers, including the power to make public recommendations, are appropriate and effective. To properly carry out his functions under the bill, including the important public education function, the commissioner obviously needs sufficient resources.

Specifically, we believe the added jurisdiction requires the commissioner to have more knowledge of private-sector operations than is currently possessed by the Office of the Privacy Commissioner, and we've made some suggestions in our earlier filed submission in that regard.

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We've also made a suggestion in connection with the commissioner's audit powers, which some witnesses have identified as a key tool for purposes of enforcement.

We've made a few other suggestions in our brief, but in the interests of time, we'll stop here for now. We'll of course do our best to answer any questions you may have.

Thanks very much.

The Chair: Thank you very much, Mr. Smith.

I'm now going to turn it over to the Canadian Newspaper Association.

Mr. Charlebois, please.

[Translation]

Mr. Marc-André Charlebois (President and CEO, Canadian Newspaper Association): Madam Chairperson, members of the committee, thank you for inviting us to appear before you to present our comments on Bill C-54.

My name is Marc-André Charlebois, and I am President and CEO of the Canadian Newspaper Association. I have with me Mr. Blair Mackenzie and Mr. Neil Reynolds.

Mr. Mackenzie is Vice President and legal adviser to Southam Inc. He is also a member of our association's board of management and chairman of the legal issues committee. Mr. Reynolds is Editor- in-Chief of The Ottawa Citizen.

The Canadian Newspaper Association represents 102 Canadian English and French daily newspapers. The purpose of the association is to ensure a free press that can meet its readers' needs.

Mr. Mackenzie.

[English]

Mr. Blair Mackenzie (Vice-President, General Counsel and Secretary, Southam Inc.): Madam Chairman, we are here to speak to one issue only. Bill C-54 contains an exemption for freedom of expression and we call on you to keep it that way. In reviewing testimony given before you, it's clear that a number of members have concerns regarding the exemption. There are some very important issues here and, in the short time we have, we hope to address them. To the extent that we do not address adequately your concerns in the course of these remarks, we hope to explore them with you during questions.

This afternoon, I'd like to make three very simple points. The first is that the exemption is a straightforward consequence of the Charter of Rights. The second is that the exemption gives the media no new rights and gives us no new excuses or defences. The third is that the exemption is consistent with the approach taken by Quebec and other relevant jurisdictions.

From a business point of view, our members do understand the need for Bill C-54. We'll be happy to expand on this in questions. In due course, Bill C-54 will presumably apply fully to our business operations. We have no objection to this. Our newsrooms, however, simply could not function appropriately under Bill C-54. This should come as no surprise. The rules in Bill C-54 were never designed to deal with newsroom issues. It is hard to imagine how the press could, for example, adequately report on the Bre-X matter if the only information we could publish about David Walsh was the information he or his lawyers were pleased to allow us to publish. The same holds true for reporting about Garth Drabinsky in the Cineplex matter.

These examples only scratch the surface of the problem. Neil Reynolds is here to help you if you'd like to explore them further in questions.

It is not easy to find the right balance between the right of Canadians to privacy and the right of Canadians to be informed, but Canadian courts and legislatures have carefully worked out responses to these difficult issues over many years and in many different contexts. The results of this balancing exercise are seen in the Young Offenders Act, in restrictions on court reporting, in provincial privacy legislation and in laws relating generally to the protection of privacy and breaches of confidence. A careful balancing of interests has resulted, which protects privacy and at the same time gives the press the room it needs to do its job. This balance is mandated by the charter and is protected by the charter, and the exemption in Bill C-54 is the consequence.

Bill C-54 gives no new rights to the media. It gives no new excuses or defences to the media. The laws of libel, privacy and confidentiality, which today prevent the media from publishing inappropriate information, will apply just as firmly the day after Bill C-54 comes into force as they do now. The drafters of Bill C-54 recognize this.

Bill C-54, furthermore, does not change our industry's respect for personal privacy. Our statement of principles and our self-regulation through provincial press councils remain powerful tools for protecting privacy interests.

Quebec, the only Canadian jurisdiction so far to have adopted personal data-privacy legislation, has included an exemption for journalism in its act. We understand that it is a matter of some importance that Bill C-54 harmonize with Quebec's legislation.

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The United Kingdom and New Zealand are the only other countries with legal systems similar to our own that have adopted data-privacy laws to date. They too have built in an exemption for journalism.

The Uniform Law Conference of Canada, whose draft bill served as the model for Bill C-54, included such an exemption. As you can see, the task force on electronic commerce came to the same conclusion, and each of the three provincial privacy commissioners who appeared before you has supported the exemption.

Let me make one final point. The principle that is at stake here is not the property of the media or of its corporate owners. The right of the media to report today's news is the consequence of the right of each individual Canadian to look into and to speak out about matters that are of concern to him or her. Whether this is done from a soapbox or through handbills or through a huge media company is completely irrelevant. That right is in peril wherever privacy legislation fails to make room for expressive freedom. That is why Bill C-54 contains this exemption and that is why other legislatures have done the same thing.

We look forward to responding to your questions.

The Chair: Thank you very much, Mr. Mackenzie.

I'm now going to turn it over to Ms. Mary Soderstrom from the Writers' Union of Canada.

Ms. Mary Soderstrom (Quebec Representative, National Council, Writers' Union of Canada): Thank you for inviting us to appear. I'm a member of the national council of the Writers' Union of Canada.

I had intended to bring a pile of books that would have been impossible to write without some of the exemptions in Bill C-54. However, I took the bus from Montreal, so I only brought a few of them. This year, I represent the writers of books in the Writers' Union, although many of our members write for newspapers and do films and a number of other things. The Writers' Union of Canada is an organization of 1,200 writers of books. We basically represent those who write in English. However,

[Translation]

Michel Tremblay, Marie-Claire Blais and Elisabeth Vonarburg are also members of our association.

[English]

We also include literally hundreds of lesser-known writers who entertain and inform Canadians.

As writers, we are concerned with two aspects of Bill C-54. The first has to do with the regulations governing the collection of personal information by “organizations”, in the sense of the bill. The second has to do with the safeguarding of personal information after its immediate use.

Personal information in the present tense: as colleagues of the newspaper association so eloquently put it, the charter rights are extremely important to our society. However, it's important not just for newspapers but for everyone. It certainly is a matter for writers of books.

In January, 1999, the national council of the Writers' Union of Canada passed a resolution supporting the bill and urging that the exemptions for journalistic, artistic and literary exemptions be maintained. Without them, books such as Rod McQueen's best-seller, The Eatons: The Rise and Fall of Canada's Royal Family, and Peter C. Newman's best-seller, Titans: How The New Canadian Establishment Seized Power, both of which were on best-seller list across the country and were among the two of the five best non-fiction books according to Quill and Quire—and were published in 1998—would have been impossible to write and to have published.

The current wording, however, does not include the word “scholarly”. There are a number of books written by our members and other writers which would have been impossible to write without an exemption for scholarly work. I have

[Translation]

L'évolution des politiques sociales au Québec, 1940-1960, written by sociologist Yves Vaillancourt. It would have been impossible to write this book if we had not had an exemption.

[English]

There's also another example, a recent book by Linda Freeman: An Ambiguous Champion: Canada and South Africa in the Trudeau and Mulroney Years.

We would suggest that the exemption should be amended by deleting the words “and does not collect, use or disclose for any other purpose” and expanding the purposes to read “for artistic, journalistic, literary, scholarly, dramatic or similar purposes”.

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If you do that, there should be some other small changes to make the wording of the bill consistent, but I won't go into them at this point.

We also have certain problems with the idea of “knowledge and consent” of the individual in question, which is mentioned under schedule 1. We are concerned that these provisions will lock up much information that is now available, particularly given the broad definition of “personal information” now in the bill.

Personal information, past tense: it's quite obvious that writers do not write only about the present and recent past. Many go much further back, uncovering information and shedding light on events that transpired long ago. Some of these authors' books are non-fiction. Pierre Berton's book, The Last Spike, is a beautiful example of that. Others are fiction, such as Margaret Atwood's recent and celebrated novel Alias Grace, a story of a murder that took place 150 years ago. Another example is Merilyn Simonds' book, The Convict Lover, which takes place at the beginning of this century but nevertheless also deals with what might be considered very sensitive personal information.

In every case, the writer of history or historical fiction relies on records preserved intentionally or by chance: journals, letters, ledger books and internal communications of companies. Sometimes the documents used are definitely sensitive. Together with historians and archivists, we are concerned that the period of protection for personal information in paragraph 7(3)(h) is unnecessarily long, and we submit that the protection should be for the shorter of 100 years after the record's creation or 20 years after the death of the individual in question.

Guaranteeing the privacy of living people, most writers would agree, is extremely important. The ease with which intimate details of someone's private financial condition can be uncovered by anyone with that person's social insurance number is alarming. Thus we concur with the basic thrust of Bill C-54 in its attempts to safeguard the privacy of all citizens.

But I would like to quote the English poet of the 17th century, Andrew Marvell. His poem, To His Coy Mistress, begins:

The grave's a fine and private place/But none, I think, do there embrace.

At some point in the future, our descendants are going to want to know the details of what we thought and did, and we are going to be dead and really aren't going to care. If, as suggested in schedule 1 of Bill C-54, all personal information covered by the act is destroyed after its use, the possibility is enormously lessened of any writer in the future faithfully reconstructing our society.

Therefore, we recommend that article 4.5.3 of schedule 1 be amended to add, at the end of the paragraph, the following sentence:

The use and disclosure of personal information for historical, statistical, literary or scholarly purposes is not deemed to be incompatible with the purpose for which it was collected.

Thank you very much. I would be glad to answer any questions you might have.

The Chair: Thank you very much, Ms. Soderstrom.

We're now going to turn to questions. If a question is not directed to you but you have a comment, please indicate that to the chair.

We're going to begin with Monsieur Dubé.

[Translation]

Are you ready?

Mr. Antoine Dubé (Lévis-et-Chutes-de-la-Chaudière, BQ): I thought that Mr. Pankiw would go before me.

[English]

The Chair: Mr. Pankiw doesn't have any questions at this time.

[Translation]

Mr. Antoine Dubé: I'll pass for the time being. I haven't had time to prepare my questions.

[English]

The Chair: That's fine. I'll start with Mr. Murray.

Mr. Ian Murray (Lanark—Carleton, Lib.): Thanks, Madam Chairman.

Really, my question is for the newspaper association and Mr. Mackenzie. As you have reviewed the transcripts of previous testimony, you'll be aware that I was one of those who questioned this exemption in the bill. I want to assure you that I am not one who recommends doing away with freedom of the press, but, Mr. Mackenzie, you're talking about how we should maintain the status quo, essentially, in terms of treatment of the press, and I would suggest to you that it's the press that has changed over the last number of years and that titillation of the audience is now much more important to even mainstream media than it was, say, 10 or 15 years ago.

When the Privacy Commissioner was here, the term he used was “scatological” press. We now have mainstream media recruiting journalists from the scatological press. My real concern is this: how do you define journalism? If anybody wants to set up a web site on the Internet and claim to be a journalist, is that person a journalist? You may have a code of ethics for members of your association, but how do you govern others who want to claim this immunity because, they say, they're journalists?

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Mr. Blair Mackenzie: Madam Chairman, I think there are a couple of parts to that question. In part they relate to the issue of how you define journalism and in part they relate to the suggestion that perhaps the press has moved in a given direction, which is much more my colleague Neil Reynolds' question than it is mine.

We would define journalism in the way in which I think it has always been defined, going back a very long way, and that is, gathering, editing and presenting the news. If you look at dictionary definitions going back a very long way, that is very much what you find. Going back to the 1750s, we find “journal” defined as

a record of public events or transactions noted down as they occur without historical discussion, a daily newspaper or other publication, hence by extension a periodical publication,

and so on and so forth.

This is from the 1600s or the early 1700s, and this is a concept of journalism that has certainly survived the introduction of radio and the introduction of television. I do not have a crystal ball to determine how it will survive the arrival of the Internet. But a definition and a concept of journalism that has stood us that well for that long will, I think, survive a little longer.

I would like to suggest that the European directive sort of got it right when it simply used the word “journalism”, without trying to get further into how to define it. If I may expand on that, if you look at what the other jurisdictions have done, they've done the same thing. They've basically adopted the word “journalism”. To my knowledge, the only one that went any further—at least of the ones I've seen—and tried to get into a definition was New Zealand, and its definition really doesn't add anything to what I've just said.

Neil?

The Chair: Mr. Reynolds, do you have something to add?

Mr. Neil Reynolds (Editor-in-Chief, The Ottawa Citizen): Well, the question, what is journalism...? Actually, the concept of news changes over time too. Everything changes. There's no static position. The definition in this context that I like best is the famous statement by Lord Northcliffe: “News is what someone wants suppressed. Everything else is advertising.”

Voices: Oh, oh.

Mr. Neil Reynolds: There is an enormous amount of advertising in journalism. We all write positive stories. We write press-release stories. But what is absolutely fundamental is the right to publish stories that some powerful person wants to stop. That will not change, regardless of how the medium changes. That is the one characteristic that has been with us from the very beginning and will, I believe, always be with us. It's that independent search or quest for truth that only a writer can sometimes achieve.

Mr. Ian Murray: If I could just comment, we're talking about a bill that deals with electronic commerce. We're working on this legislation because the world has changed and it's possible to disseminate information much more broadly, much more quickly and much more anonymously than it ever was in the past.

So I come back to my question: essentially, this exemption would protect anyone, whether they earn their living as a journalist or are just having fun and want to publish a little newsletter of some kind on the Internet and say anything they want to about anybody. Of course, you come back to the claim that the libel laws will protect people who are libelled. The fact is, in reality you're much more likely to win and go bankrupt then you are to really have satisfaction in a libel case. That's not me talking; this is what lawyers have told me. I come back to this point: who is a journalist? Anybody can claim to be a journalist. Does that make them a journalist?

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: Thank you. I'd like to respond on two levels. I think it's a little unfair to focus on journalism alone because, as I think you would agree, the proposed exemption is not an exemption for journalism alone. It is for journalism and for artistic and literary purposes, and you've heard the view expressed that in fact those don't exhaust the categories of freedom of expression that really are intended to be covered by this. With respect, I think it's a mistake to just focus on “who is a journalist?” as though that would necessarily answer the question of who would benefit from such an exemption. The direction of journalism and of literary and artistic purposes, as was pointed out, really comes right from the European directive, where, to a large extent, this thing began.

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The only other comment I can offer is a purely speculative one. Many centuries ago, they had exactly the same problem in England and in other countries, where anyone could go to a printer and have them print up the most scurrilous nonsense. They could destroy reputations, disappear in the night and not be found. The legislative response, or at least the legal response, was to make the printer liable. A whole series of laws then falls out of that, which gives printers the right not to publish certain advertising precisely because of the risks they would run in publishing it. Maybe that is a direction you want to think about.

That is not a proposal I'm making this afternoon, not at all. I simply point out that this is not the first time the law has had to deal with the issue of people destroying reputations through means of broadcasting. Typically, the answer lies in finding somebody else and telling them they have to play a role in it.

Mr. Ian Murray: I didn't intend just to pick on journalists. I would include the other categories in that as well, because they can claim that they're doing literary or artistic work or whatever, just as they can claim to be journalists. It's an interesting question. There's no easy answer for me. Just so you know, I still would come down on the side of freedom of the press, but I am very concerned about this.

The Chair: Thank you very much, Mr. Murray.

[Translation]

Mr. Dubé, you have the floor.

Mr. Antoine Dubé: Thank you. I really liked the presentations of all the witnesses and I would like to ask them two questions.

Some witnesses before you said this bill had two aspects. They hoped that the two aspects would be treated in separate and distinct ways. This involves, of course, the whole question of electronic commerce, which is evolving a great deal. A certain number of things are now known about it, although it can go even further. There is also the question of the transmission of personal information, perhaps by non-electronic means.

I would like to find out from each of your groups, and you can see by the questions on the media, whether it would not have been better to have these two aspects dealt with in two separate pieces of legislation. That is my first question.

Secondly, I would ask those who are familiar with the Quebec privacy legislation to give us their views about it and how it operates. Do they think it is a good law? Is it suitable? Could the federal government have used it as a model? Are there possible problems of overlap between these two pieces of legislation for companies or for your members who are in Quebec?

[English]

The Chair: Monsieur Dubé, are you addressing this question to all four witnesses?

[Translation]

Mr. Antoine Dubé: Whoever wants to answer. I'm not forcing any one.

[English]

The Chair: Mr. Mackenzie, would you like to start?

Mr. Blair Mackenzie: Forgive me if I respond in English.

With respect to the question of duplication between Quebec law and this bill, because we are here only to speak to the one issue of the journalistic exemption, it's really not something I can comment on. Clearly the proposed federal legislation will be consistent in that both its approach and Quebec's approach is to focus on journalism and create an exemption. That's about the only comment I can offer from that perspective.

With respect to your earlier question, the point about whether it is desirable to set up two different approaches or virtually two different legal systems for handling information—if I got your question correctly—separating out, in other words, the dissemination of the use of personal information otherwise than for business purposes, if that captures the thought of your question.... Again, because we're here only to speak to the one issue, I can't comment at length.

I would simply say that from our perspective the courts and legislatures in Canada have already in effect set up a well-thought-out and quite detailed structure about how information can be used for journalistic purposes, which is to say, not for business purposes but for purposes of informing the public. It is precisely that balance that we ask this committee to keep. We say that it's a very well-thought-out balance, that it has stood the test of time and that it deserves not to be disrupted. That's about all I comment on because of the limitations of our position on the bill.

The Chair: Thank you, Mr. Mackenzie.

Ms. Soderstrom, do you have something to add?

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[Translation]

Ms. Mary Soderstrom: Yes. I know that we are currently examining the question of the Quebec legislation. I know that a few researchers and other people have some criticisms of the Quebec legislation.

Next week, there will be a symposium on the problems that the Quebec decision creates for archivists, historians and writers working on historical novels and other areas.

Accordingly, I can't give more details at this time about our criticisms of these laws, but there are some that have been made.

[English]

The Chair: Thank you. Mr. Boyd.

[Translation]

Mr. Harris Boyd: I have a few comments. Two of the four largest cable distributors in Canada are in Quebec. We have been living with the Quebec legislation for five years. We see these five years of experience as an advantage. We find that the Commission d'accès à l'information du Québec works very closely with our members to help them comply with the law. The approach that we propose to our subscribers to comply with the federal legislation is the same one adopted in Quebec, that is, to provide information to the subscribers, help them understand the legislation and inform us if they think we have some information that they do not agree with or if they want to take their name off certain lists. What we have tried has worked well in Quebec, and I think this is going to help us a great deal in the rest of Canada.

[English]

The Chair: Thank you, Mr. Boyd.

Mr. Smith, do you have anything to add?

Mr. Arnold Smith: Certainly. As we expect our operations to be national before too long, we do look at the municipal utilities industry in Canada on a national basis. We've looked at the two bills. We've looked at Bill C-54 and we've looked at Quebec's Bill 68, and we believe that the bills are different. We don't foresee any problem in living within the confines of either or both bills.

We would just hope that Quebec would continue to enforce its bill and improve it as time goes by, and we would expect the same for Bill C-54 as well. We would support both pieces of legislation as legislation that is needed, and we don't see any reason in particular why they can't be administered to complement one another. Again, from our perspective, we think the main job is to get the other nine provinces to now legislate similarly.

As for your first question about the possibility of separate legislation or handling electronic commerce and personal information under separate legislation, in our case and in our industry, personal information and electronic commerce are inextricably intertwined. It would be very inefficient, from our point of view, to deal with the two of them separately. If we had to make a choice, we would prefer to see them dealt with in one place.

[Translation]

The Chairperson: Thank you, Mr. Dubé.

[English]

Mr. Lastewka.

Mr. Walt Lastewka (St. Catharines, Lib.): Thank you, Madam Chair.

My first question is for Enlogix. I'd be interested in understanding the type of information you're collecting now. For example, on consumption, do you do it to identify people and do you do it as lump sum? Today, as you're collecting this information, how are you getting consent?

The Chair: Mr. Smith.

Mr. Arnold Smith: Thank you.

Traditionally in the industry, utilities typically do not get explicit or even implicit consent for collecting of meter data. Historically, the collection of meter data has been part of an understanding as something the utility has to do in order to deliver an essential service. That pretty much succinctly captures the situation today.

We are sort of at the leading edge of change, where typically with deregulation comes the instrumenting of utility meters. Rather than sending someone out to read the meters manually, you put a device on the meter to generate meter data remotely much more frequently.

• 1615

Are those meter data collected in such a way as to be attributed to an individual's energy usage? No, nor would I anticipate that. Most of the richness in the meter data would likely be translated into lessons about the way energy is consumed in that premise—it could be a home or it could be an apartment building—more in the interests of efficiency of energy usage as opposed to anything of a personal nature.

Mr. Walt Lastewka: Thank you.

My next question is for the newspaper association. You mentioned that you have just over 100 members. Do you have a specific code of ethics that the newspaper members have all agreed to?

Mr. Blair Mackenzie: Absolutely. We have adopted a code of ethics at the level of the Canadian Newspaper Association. I think that has been the subject of correspondence back and forth. Then each individual group of newspapers typically has its own rules, which may go further and expand on that.

You may want to talk about this, Neil. I don't know in what direction, with what definition or to what depth you want to go.

Mr. Walt Lastewka: I understand the exemption. I want to understand how the industry voluntarily controls itself. I hear a lot about industry controlling itself and so forth. I'd like to understand how the newspaper industry controls itself. Given this privilege of exemption, how is the industry controlling itself and how is it audited so that it is properly applied?

The Chair: Mr. Reynolds.

Mr. Neil Reynolds: I can answer specifically in terms of the Ottawa Citizen, which I think is probably representative of larger papers. We have formal policy code-of-practice documents that are mandatory studies for all managers in the editorial department. Are you talking specifically about the editorial departments?

Mr. Walt Lastewka: Any....

Mr. Neil Reynolds: The general comment that I think I should make first is that on any newspaper I've ever worked for, the barrier between the commercial side and the editorial side is absolute. We have no access of any kind to information on the other side of that wall.

For example, if there were in the paper a personal ad for something that sounds strange or interesting, there is no way the editorial department could find out who purchased that ad. It isn't done. We wouldn't even ask. If we did ask, we would not get the information. That's traditional. That's classic with respect to that barrier between the commercial and the editorial sides.

On the editorial side, we have our own written policies on, obviously, very many aspects of our behaviour, but including privacy. At the Citizen, we have an executive editor who has very specific responsibility for complaints or problems that arise. Our policy is to deal with these fast. If for some reason a person has a problem with the way the Citizen has handled an issue, there is, at the first level, the press council, and it's the Ontario Press Council in this case.

I sat on the Ontario Press Council for six years. I know quite well how it functions. It can look at virtually anything that it deems to be unfair, and from unfairness up in regard to seriousness. I can tell you, having watched it and having been there through many years, that the press council itself takes these fairness complaints very seriously. They will adjudicate.

One of the requirements of the membership and of being involved in the press council is that a newspaper is obliged to publish the full adjudication of the press council. So if a newspaper is reluctant to say “I'm sorry” to someone, up front, they know that a few weeks later they may be compelled to say “I'm sorry”. That's just on a sort of a humble level of complaint, but even on that level we take it quite seriously.

• 1620

We track our complaints of all kinds. We live in an age of management practice and all of that, so you know how many complaints per thousand there are, you know what categories they fall into and you track that every month in the monthly reports. It's a commercial enterprise that we're part of. It is in our self-interest to make sure there are as few complaints as possible and that we deal fairly and quickly with those complaints that there are.

The Chair: Last question, please, Mr. Lastewka.

Mr. Blair Mackenzie: May I say something?

Mr. Walt Lastewka: Go ahead, Mr. Mackenzie.

Mr. Blair Mackenzie: I will just add by way of example that the Ontario Press Council's mandate includes holding newspapers to the following standard:

readers can call Ontario newspapers to account for unfair conduct such as invading privacy without justification,

and that's one of the very specific ones they focus on.

In British Columbia, this is the standard:

Publishing material or making inquiries about the private lives of individuals without their consent is not acceptable unless it is in the public interest, thereby overriding the right of privacy.

These are the written standards that they use to adjudicate issues.

Mr. Walt Lastewka: I understand that. I understand mandates and I understand following mandates. I have a concern with the auditing that people are applying to the mandates.

I'll come back to this later, but maybe, Mr. Reynolds, since we were on the subject of adjudication and correction, sometimes a thing is in the paper by mistake—and it could be innocently by mistake—and receives a headline or a large write-up. Then I find the correction for that item on page 39. I know some newspapers now take the position that all corrections will be on page 2 or page 3. My question to you, since you have a lot of experience, is, why isn't the correction getting the same amount of ink that the error did in the first place?

A voice: Oh, oh.

Mr. Neil Reynolds: Generally most newspapers now have a place where they publish corrections. Most papers publish them on page 2. Page 2, as you can tell numerically, is much more up front in the paper than page 37. Newspapers get a bit disorderly as you go through them. Page 2 is an anchor position for corrections and apologies, except in unusual situations. It is not unprecedented that a newspaper will publish in a particular position as a result of a legal agreement. If it's involved in lawyers negotiating a settlement mutually agreeable to both parties, it may be published in a specific location as opposed to page 2.

Mr. Walt Lastewka: I understand that from the legal standpoint, when there's an agreement to do certain things. I'm trying to avoid having to get into legalities. I want to stick to the privacy portion only. If it's on a privacy matter—and maybe that's what should be in the legislation or regulations—if there's something misprinted on the privacy side and there's a correction, it needs to have the same amount of exposure as the original misprint. What would your remarks be in regard to that?

Mr. Neil Reynolds: I don't have a particular response to that. Generally readers know where corrections are. Some people like to read them. I like to read them—in other papers.

Voices: Oh, oh.

Mr. Neil Reynolds: You go to page 2 and you read what they did wrong that day, right?

I don't have a point of principle over where an apology occurs.

The Chair: Mr. Mackenzie, you wanted to add something—briefly, please.

Mr. Blair Mackenzie: I'm certainly not aware of any practice, at any of our papers, to bury corrections or to put them in weird places. The only times that I've seen corrections placed in unusual places, it has been done at the request of the person who brought the matter to our attention in the first place.

The Chair: Thank you, Mr. Mackenzie and Mr. Lastewka.

Mr. Jones, do you have any questions?

Mr. Jim Jones (Markham, PC): Yes.

In the CCTA brief, you said you were involved in the development of the model code, but you go on to say that you subsequently developed your own sectorial code for the use of the members. What's different?

Mr. Harris Boyd: Essentially it takes that CSA model code and makes it directly applicable to our companies in terms of the types of services and the types of information we have.

• 1625

It incorporates all of the principles from the code that are in this current legislation in the schedule. It essentially tries to make it easier for our companies to implement it, such as, “in a cable television company you will do this”, and that sort of thing. I have to say that we have not implemented that sectoral code because we got overtaken by the current legislation. Rather than go out to our customers with that, we decided to wait and see if it is going to be changed in this process—rather than going out twice with it. We haven't actually implemented it, but we have it ready to go. Of course, that's why we're pleased that it now reappears here. We have a lot of the homework done.

Mr. Jim Jones: Okay. Thank you.

Yesterday we heard from the major telecommunications companies that are concerned with the extent of the power granted to the federal Privacy Commissioner. In particular, they were concerned with subclause 18(1) of the bill, which allows the Privacy Commissioner to audit a company based on whether the commissioner—and the commissioner alone—believes that there is a violation of recommended business practices. Do you view this provision as unnecessarily intrusive? Would your organization support an amendment to remove any reference in subclause 18(1) to recommended business practices?

Mr. Harris Boyd: Are you addressing that to the cable industry?

Mr. Jim Jones: Yes.

Mr. Harris Boyd: We don't have a real problem with the way it is written at the moment. Our standards relate largely to our business practices in terms of quality of service, billing and notification to individuals. Obviously that's a lot broader than just privacy, but our standards do cover, in a very specific sense, our practices with regard to privacy. We will make that much more specific in implementing this legislation and in implementing our own code. On the surface of it—and I can't say that I've gone into that in great detail—we do not see it posing a problem for our companies.

Mr. Jim Jones: In its current form, Bill C-54 requires a mandatory review after five years. Do you folks feel that this is the right length of time for reviewing this on an ongoing basis? Should there be an obligation in Bill C-54 for the federal government to formally consult with provinces so that future federal and provincial privacy standards move forward together?

Mr. Harris Boyd: I certainly think that harmony, federally and provincially, is a very important thing, and I think there should be consultation. With respect to the five-year review, I think that's a reasonable period of time, given that it will be one year before it will apply to federally regulated companies and three years in the case of provinces that don't pass similar legislation. Five years down the road is not that long after a more widespread implementation. I think it's important to do that review at that time, but those affected by it, both consumers and businesses, should be consulted in doing that.

The Chair: Does anyone else want to add something?

Mr. Smith.

Mr. Arnold Smith: First, I concur with both of Mr. Boyd's points. It remains to be seen how much work it will take to keep federal legislation and provincial legislation harmonized over time.

Second, five years seems and feels reasonable at this stage of the game, but I personally feel that we should be prepared to adjust as we move forward, depending on how quickly change comes at us.

Mr. Jim Jones: Okay.

Subclauses 12(1) and 18(1) allow the Privacy Commissioner to enter an organization's premises and to obtain copies of documents without prior jurisdictional authorization. This runs contrary to the precedent set under statutes such as the Competition Act, which requires prior court approval before the collection of information. Would your organization support amending these subclauses to require the Privacy Commissioner to obtain judicial authorization before he exercises his search-and-seizure powers?

Mr. Harris Boyd: Do you want to try that one first, Mr. Mackenzie?

Voices: Oh, oh.

The Chair: Mr. Mackenzie?

Mr. Blair Mackenzie: There's only one answer to that one: it's frightening.

The Chair: What's frightening?

Mr. Blair Mackenzie: The prospect of no authorization at all before a search warrant, especially in the context of the newsroom.

The Chair: Okay. Mr. Smith.

Mr. Arnold Smith: From our point of view, we support the commissioner's audit powers as proposed. We believe that the audit powers are an important tool in the arsenal, but our brief pointed out that the bill seems to allow an audit after one complaint. We would hope that as it rolls out the audit powers would be used logically to weed out bad actors.

• 1630

We're particularly sensitive to the fact that the audit process could be fairly public. To the extent that trust in what we're doing in the middle of a rapidly changing market is absolutely essential to us—it is essential that our clients and their customers trust us—if an offhand or capricious audit were to happen, it could be far more damaging if it were public. It would be very damaging to us if it were public. The process gives us some concern.

Mr. Harris Boyd: Our view is that a search and seizure is a pretty remote possibility. We certainly hope that's the case. It is, as Blair said, a bit frightening that there would be no notification for an unauthorized search and seizure. As we mentioned in our brief, we hope that we do not ever see cases involving our companies where we get to try that out. We hope that there will always be an opportunity for a company to respond to a complaint, that mediation will be used and that this is very much a power of last resort. But I think we do probably have to realize that there may well be cases where you do need a power of last resort.

From our point of view, we hope that it never comes to this applying to us, but there may well be instances where you need to be sure that you can have access to information. Maybe giving the notice would prevent that.

Mr. Jim Jones: Thank you.

The Chair: Thank you. Ms. Soderstrom.

Ms. Mary Soderstrom: I would like to concur with Mr. Mackenzie's immediate reaction to the idea that you'd have a search and seizure without legal notification. I think it's absolutely contrary to the basis of our society to have a search without a search warrant.

The Chair: Mr. Acker, do you wish to comment as well?

Mr. Stephen B. Acker (Counsel, Enlogix Inc.): Yes. Speaking as a lawyer, I'm not particularly troubled by this.

There was a discussion yesterday, I think, about the difference between the criminal context and the civil context. I know there are provisions on the civil side that have not yet been passed in the Competition Act. I think it's most unlikely that we'll have the Privacy Commissioner kicking down doors looking for documents.

Voices: Oh, oh.

A voice: You never know!

A voice: Here comes Bruce!

Mr. Stephen Acker: He has very similar powers under the Privacy Act, which of course applies only on the government side.

I suspect that if the commissioner wants documents under this bill, he's going to ask for them, and if he wants to come and visit he will send a letter saying he's coming at such-and-such a time. If the organization wants to contest that, they can run off to court and seek to avoid the search. I don't find this a very troubling provision in the bill.

The Chair: Thank you, Mr. Acker. Monsieur Bellemare.

Mr. Eugène Bellemare (Carleton—Gloucester, Lib.): Merci, madame la présidente. I'm going to be asking these erudite questions and I hope that they won't play mental games with me.

I would like to go back to the issue of e-commerce. We've been talking about this bill and the issue has become one of personal privacy. We have to put it back in the context of e-commerce.

In e-commerce, my concerns are data mining and e-commerce using telemarketing techniques and even boiler-room tactics—and I think you know what I mean by boiler-room tactics—and “attacking”, a word which I use carefully, the old, the gullible, the young and so on through the Internet. What are your views on that? I'll be more specific as I go through the questioning.

The Chair: Are you addressing your questions to any one of the witnesses?

Mr. Eugène Bellemare: Yes, to any one. Cable people have the Internet, and they'll do a lot of that stuff on the Internet and—

The Chair: Mr. Boyd, do you have any comments?

Mr. Harris Boyd: Obviously we're not in favour of people being attacked over the Internet. The question is, how does one actually control that? At this point, we're providing a high-speed service to people. They have access to our network. If it were brought to our attention that they were doing something illegal, our only recourse would be to cut them off. We do not monitor their transactions so we do not have any idea what they're saying.

Mr. Eugène Bellemare: Okay. Let me go back again and let me be a little more specific. Doing business over the Internet, you have the public person, the private person and the person doing business, whether it's a business person or not. This is e-commerce.

• 1635

You don't necessarily visualize the purchaser. The interaction is often done blindly. I say “often” because now there are gadgets where we can see each other and look at each other. But again, with respect to the category of people I'm talking about, you could abuse the privacy of a family through the child who is a computer whiz and can give out all kinds of information.

The Privacy Act here, save for the acceptance by Mr. Mackenzie regarding the Young Offenders Act.... I recognize that you accepted that the Young Offenders Act is one area of public information, public domain, that is really a no-no for journalism. You accept that.

Mr. Blair Mackenzie: Yes.

Mr. Eugène Bellemare: Okay. But through the Internet, even if it's not e-commerce, if no commerce is being done, because someone is inquisitive, like a child, for example...you can really dig out from a child or a senior citizen or someone who is extremely gullible or.... You can probably give us a variety of other cases and show how you can get personal data out of them and then use it for your data mining. Is that the misuse of personal information?

The Chair: Mr. Mackenzie?

Mr. Blair Mackenzie: There's really nothing that I can respond to, because the Canadian Newspaper Association is not involved in e-commerce. The sole purpose of our presentation this afternoon is to speak to the journalistic exemption. Our members are all aware of the bill—

Mr. Eugène Bellemare: Hold on a minute—

Mr. Blair Mackenzie: —and none of them have gone to challenge it.

Mr. Jim Jones: You're involved in e-commerce.

Mr. Blair Mackenzie: No, not the Canadian Newspaper Association, and I'm here in that capacity.

Mr. Eugène Bellemare: Okay.

Mr. Blair Mackenzie: I don't mean to hide behind that, but the reality is that I can't comment on it. It is simply not the issue that drives us here this afternoon.

The Chair: Mr. Boyd.

Mr. Harris Boyd: I will make a quick comment. We mentioned in our brief that we are prepared to assist in public education about the dangers of using the Internet. I think this is very much an issue for public education.

Mr. Eugène Bellemare: Wait a minute.

No, please, Madam Chair.

The Chair: Mr. Bellemare, is there a problem?

Mr. Eugène Bellemare: But public education, Madam Chair...bring out the violins and they'll do the goody two-shoes act.

I'm talking about the abuse that can be done. How do we as legislators put in a law where we protect the innocent from being attacked in their privacy because they're either old or gullible or not articulate or because they're being conned, a con job is going on? You are the vehicle for doing it. You're permitting it because you're making money out of it—as long as it's not illegal. We're in the law-making business here and we're saying, never mind the education stuff, what about the legal material?

Mr. Harris Boyd: It seems to me that the laws in terms of fraud will still apply. There isn't that much difference in doing it over the Internet, by door-to-door solicitation or over the telephone. These are all ways of getting information out of people and using it when they are, to use your term, “gullible” and give it to you. Obviously we have fraud artists operating through all of those other media.

I would not reject public education out of hand so quickly. With all due respect, as law-makers you can only go so far in protecting people against themselves. They have to at least be aware that giving out certain information—like your credit card number—is equally dangerous over the telephone and over the Internet, and allowing your child to romp freely over the Internet can also cause a great deal of problems in your family. To help prevent this, I would say that we all have a role in terms of public education.

Mr. Eugène Bellemare: I'd like to swing back to the media people in regard to a public person and a private person. Now, for a public person, you named Mr. Walsh of Bre-X, that con job he and his gang have done on all of us. Now he's a public figure, just like politicians are public figures.

• 1640

But are the families of public figures fair game in the privacy question that we're dealing with today, whether it's the children or the spouse, whether it's about which ice cream they buy or what kinds of cars they drive? You can sell that information to other suppliers of goods who will bug them forever about buying things. Or newspaper people will be ridiculing a private citizen because she or he is eating the wrong type of ice cream and they've discovered that through the e-commerce system.

What are your views on that, on the differences between the public information and the private information that you're gathering?

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: With respect, I have to say that I'm not completely sure I follow the question, but to the extent that your question is about whether the rules in this proposed legislation should deal differently with privacy surrounding people who are, by reason of things that have already happened, in the public eye and with privacy surrounding people who are not in the public eye, I say that I don't see a reason at all. I don't see any justification whatever for that kind of distinction.

From a news point of view, what is news is news, and a person may find themselves in the news for a good reason without previously having been a news subject. The issues that come to Neil's attention and that he has to deal with go well beyond dealing only with those people who have been in the news in the past. I'm not sure that I followed your question. I may not be fair to it.

Neil, I don't know if you want to add to that or have picked up a sense of the question that I missed.

The Chair: Mr. Reynolds.

Mr. Neil Reynolds: As I understood the question, you were asking whether we somehow exploit electronic information in order to harass people.

No.

But I'm not sure if I'm missing something. We obviously—

Mr. Eugène Bellemare: Within the e-commerce context?

Mr. Neil Reynolds: Editorial departments, in my judgment.... I have no experience with e-commerce as a tool for journalism. We use the Web. We use the electronic medium—everything that's available. But e-commerce, the buying and selling of things, is not a part of our life in journalism. It doesn't help us. We're not buying and we're not selling; we're just talking.

Mr. Eugène Bellemare: But you belong to a boardroom group on Bay Street that could control your information and get the information so that they may misuse it or even—Mr. Acker will recognize this word—“mal-use” it.

Mr. Neil Reynolds: I don't understand the context of how that could affect a news story in a newspaper.

Mr. Eugène Bellemare: Well, not a news story—

The Chair: Thank you very much, Mr. Bellemare.

Mr. Eugène Bellemare: —but it's access to private information.

Madam Jennings, please.

[Translation]

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Madam Chairperson, and I thank the witnesses for their presentations.

I am going to begin by saying that I agree with the exemption. I am taking careful note of your comments in favour of taking a closer look to see if, in fact, the clause and the exemption should be broadened to cover the situation you mentioned.

I have one question to ask and anyone of you can answer. Some of you represent employers' associations and others, such as the representatives of the Canadian Newspaper Association, cover events. You talked about Bre-X. Sometimes it's the employees who, in the course of their duties or tasks, see that their employer is committing offences, sometimes criminal offences, sometimes penal offences. In this bill, the offences are penal, not criminal.

Because of the climate in a given company, an employee may not think that she can safely denounce this practice and speak about it to a higher level in the company. Assuming that the bill were in force and the exemption you want, in place and if the other amendments proposed by other interest groups had been included, do you think this bill should include what is called protection for whistleblowers?

• 1645

This is a situation that we are already seeing in the United States at the federal level. You can also see it in some states. There is also a movement here in Canada to spell out the protection available to an employee who denounces a situation where there are reasonable grounds to believe that an infraction or a violation is being committed, not on a one-time basis but systematically to the point that it has almost become company policy.

Do you think there should be protection like this in this bill? That's my first question.

[English]

The Chair: Madam Jennings, we'll do this question first, then the next one.

[Translation]

Mrs. Marlene Jennings: It's perfect.

[English]

The Chair: Mr. Boyd.

[Translation]

Mr. Harris Boyd: In our opinion, this bill is oriented towards the consumer and not towards employees. If there were an offence, it would be up to the consumer to file a complaint and urge the employees to go against their employer and their company, I agree that this puts a great deal of pressure on the employees. Perhaps in some cases they could lose their jobs because of this.

I don't know if the solution would be to have a specific provision for this. I don't know the word in French, but you used the term “whistle blowing”. Is this the best response to that situation, or does the answer lie in a more open system where consumers would be more aware of their rights, of the kind of information we have and how it is used? This depends on the type of offence you are talking about.

[English]

The Chair: Mr. Smith, do you have anything to add?

Mr. Arnold Smith: Certainly. Just quickly, we would hope in our own case that our own internal standards and guidelines would leave an employee free to raise complaints, given that the organization hasn't committed the offence. Individuals or groups within the organization would likely be the ones committing the offence. We certainly would endorse whistle-blower protection because we accept that there could be cases where firms just would not have very good internal rules.

The Chair: Mr. Mackenzie, do you have anything to add to that?

Mr. Blair Mackenzie: We certainly would have no difficulty or objection at all to the inclusion of protection for whistle-blowers in this legislation. Indeed, I believe it came up in our earlier discussions with members of the task force. It is consistent, for example, with the way in which our courts have developed the law relating to the disclosure of confidential information. Our courts certainly understand the need to protect those who disclose for a valid public purpose, and it is, in my view, a very appropriate matter for the committee to consider.

The Chair: Ms. Soderstrom, do you have any comments?

[Translation]

Ms. Mary Soderstrom: I fully agree.

The Chairperson: Thank you. Mrs. Jennings.

Mrs. Marlene Jennings: My second question relates to your answers. The term “whistle blowing” has just been mentioned. In the bill, there is a clause that refers to the powers of the Commissioner and the report of the Commissioner. I think it is Clause 13. It mentions complaints and the Commissioner's power to determine, after investigation, whether a complaint is frivolous, vexatious, trivial and so on.

If there ever were a “whistle blowing” provision, would you agree that there should be protection for an employee who believed on reasonable grounds that his company had committed an offence against this Act, while recognizing however that such protection would not be granted in cases where the Commissioner found that the complaint was frivolous or vexatious?

The reason I ask this question is that I was an assistant commissioner with the police ethics committee in Quebec for many years. I have seen—not often, however—complaints making serious allegations that were frivolous and even vexatious.

• 1650

In such cases, there was unfortunately no recourse for the police whereby they could sue the complainant for the damage caused to their reputations and perhaps even to their family's reputation.

Do you think it would be reasonable to exclude such protection in cases where the complaints were held to be frivolous and vexatious?

Mr. Harris Boyd: Yes. I think it would be quite reasonable to have such an exemption.

[English]

The Chair: Mr. Smith.

Mr. Arnold Smith: I agree.

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: Directionally, I would agree. Your thinking is clearly much further advanced than mine is about that, about how it works from a drafting perspective. I would feel much happier if I had a moment to consider it and get back to you, but directionally I think it's right.

[Translation]

Mrs. Marlene Jennings: I invite you to think about this and to send your comments in writing to the Clerk of our committee. Thank you very much.

Mr. Blair Mackenzie: O.K.

[English]

The Chair: Thank you very much, Madam Jennings.

Mr. Lastewka, you have another question.

Mr. Walt Lastewka: Thank you, Madam Chair.

I want to look forward here. Mr. Reynolds mentioned that news is what people want suppressed and all else is advertising.

I think that was your quote.

It's become obvious to us through various organizations that Canadians are really ignorant of the facts on the invasion of privacy. Mr. Boyd or Mr. Smith, I think, talked about how people have to take it upon themselves to take care of what they're giving out and what they're not giving out.

But once this bill is approved and gets royal assent, the communication, providing Canadians with the proper information, is going to be very much a key, as is making sure that it's not written one way in one paper and in another way in another paper or variously interpreted or broadcast or written. I'm asking for your assistance on how we, as associations.... I understand what you say when you say you came here only to protect that one area. I want you to go beyond that.

How can we assist the commissioner in educating Canadians on a very important matter—which we all admit needs to be out there in the proper way—without having a whole pile of conflict? Can the newspaper association, the broadcasters and the commissioner band together for the good of Canadians with respect to having Canadians understand what we really mean in this bill? I ask for your comments.

The Chair: Mr. Boyd.

Mr. Harris Boyd: That's an excellent suggestion. Obviously our customers are customers of Bell and Ontario Hydro and all sorts of different firms, and if all of these people, even with the best intentions of the world, all try to explain it to the same customer, it's bound to get pretty confusing. Particularly for associations at the national level, I think, it's an ideal role for them to play: to work with the Privacy Commissioner to try to develop a consistent approach to explaining this new law—when it becomes law—to our customers and to Canadians in general.

Obviously we have a lot of vehicles at our disposal. We deal with our customers virtually every month and it would be nice once in a while to have something other than a bill to send. Also, we certainly have community channels and other levers at our disposal. We would be very open to that approach. At the end of the day, nobody wins if there's confusion, so I would endorse that.

The Chair: Mr. Smith.

Mr. Arnold Smith: We would endorse it as well. We're particularly sensitive to the need for public education and generally managing the possibility of conflicting messages in our industry, which is very confused right now in the midst of deregulation and restructuring on an industry-wide basis.

Also, as Mr. Boyd just said, our customers are also telephone customers, cable customers and so on.

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There's only thing I would add to endorsing the notion of working to avoid conflicting messages to the public once the bill receives royal assent. As I look at some of the messages currently framed by companies that have in place processes modelled on the CSA model code, I see that they are fairly similar, so there may be a tool in the CSA model code and there may be some instructive phrasing therein that might be adopted and shared among us.

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: The Canadian Newspaper Association is in a somewhat unique position. It can certainly play a facilitating role in matters like this in ensuring that its members know the position being taken by the government and that they fully understand the legislation as it is passed. But the Canadian Newspaper Association, by the way in which it is structured and operated, has absolutely no ability to order the newsrooms to publish stories that track a story in a given way. That is simply not part of what it does. The members of the association would have no part of it even if they could be told how a given news story had to be covered.

While the association can play a facilitating role, can convey information and can allay instances of misunderstanding, I don't think you can look to the association to cause a particular point of view to be brought to bear in each of its constituent newspapers.

Mr. Walt Lastewka: I heard earlier that you don't want the advertisers to be in conflict with the reporting. I can just hear it now. I can hear the newspapers—I'll stick with you, Mr. Mackenzie—saying “let the government pay” for getting that information out. I'm looking at it from the standpoint that it's a very important matter for every living Canadian. We want to inform them about this matter as soon as possible, for the benefit of the country. What role will your organization play in making that happen?

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: That question goes beyond any mandate I have, but I think you're entitled to an answer. I think that's one we are going to have to caucus on and address afterwards. I do think that I have correctly set out for you the position that the association has to take, which is that we're in no position to tell the newsrooms of our constituent members what a given story is. But we can facilitate, and we look forward to playing that kind of role.

Mr. Walt Lastewka: Then I would request that you do that. Yes, there's a lot of money that could be spent on advertising.... I'm afraid of the advertisers being in conflict in informing Canadians. I like Mr. Reynolds' quote so I'll use that and quote him on that too. I think it's very important that the explanation of this bill—in working with the commissioner—be done for the good of Canadians.

The Chair: Thank you very much, Mr. Lastewka.

We've given the commissioner a lot of jobs today. I'm glad he's here to hear what he has to do.

Voices: Oh, oh.

The Chair: That being said, I just have two hopefully quick questions.

Mr. Boyd and Mr. Smith, you both deal with a lot of customers, with names and lists and that type of information. Do you sell that information right now?

Mr. Harris Boyd: No, we don't.

The Chair: So Bill C-54 would really have no effect on any type of transfer.

Mr. Harris Boyd: No. We don't sell it to third parties.

The Chair: Mr. Smith, do you sell to third parties at all?

Mr. Arnold Smith: No. The straight answer to your question is no. I grin because utilities have historically not been terribly efficient users of customer information—

Voices: Oh, oh.

Mr. Arnold Smith: —so we are far less threatening than one might assume.

The Chair: Okay.

Mr. Boyd, do you buy that information?

Mr. Harris Boyd: Do we buy it from our customers or from other people?

The Chair: Do you buy lists of names from other people?

Mr. Harris Boyd: No. I can't think of a single instance where we would. The thing is, we have most of the entire customer base in the country because we're so broadly based.

The Chair: Well, except that I don't have cable lines in front of my house so you don't have me.

Mr. Harris Boyd: You don't?

Voices: Oh, oh.

The Chair: So there you go.

Mr. Harris Boyd: We'll try to solve that one. Obviously we can find you through the telephone book pretty easily.

The Chair: You can come by where I live, but there's no cable line in front of my house so I'm still not going to get cable.

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That being said, I just wanted to quickly touch on some of the comments that were made earlier. As we all know, some politicians have thicker skin than others. My name has been batted around since I was born, so I say my skin is slightly thicker, but it'll probably never be thick enough.

Mr. Mackenzie, you commented that you believe in journalistic freedom, as I do, and that there needs to be freedom of the press, that there needs to be information available, yet I see my own privacy—and I say this as an individual and a politician—protected by the rights of search and seizure of the commissioner. Based on Mr. Acker's statement, if you have a good lawyer, do you really have a problem?

Mr. Blair Mackenzie: I do in the context of the newsroom. I'm not sure that Mr. Acker, with all due respect, was speaking in a newsroom context. Clearly we'd have difficulty with easily seeing rights of search and seizure come into play.

The Supreme Court of Canada has dealt extensively with its views. I'm happy to lay them out for you if you wish, but I must say that it takes a very dim view of this as well, because of its very strong sense that the integrity of the news-gathering process demands the least possible interference with the functioning of the newsrooms of the country.

The Chair: Mr. Reynolds, do you have anything to add? No?

Okay. I want to thank you all for being here today. I appreciate your comments. We look forward to any written responses or further suggestions you may have.

Some of the amendments, as some of you noted, have already been tabled and are available if you would like to take a look at them. There could still be more changes. We're sending them out to all the witnesses, as the clerk has just informed me, so you may have already received a copy. If not, the clerk can send you an e-mail copy—through electronic commerce.

Voices: Oh, oh.

The Chair: The meeting is now adjourned.